WALKO V·. FLINT.
WALKER t1. FLINT
and others. January 3, 1881.)
(Oircuit Oourt, E. D. Missouri.
A jurisdictional question cannot be raised by a motion to dismiss, except where the want of jurisdiction appears on the face of the record. 2. IN ABATEMENT.
Where facts not of record have to be shown, the question should be brought before the court bv a plea in abatement. 3. JURISDICTION COURTS. lNTEIlFERENCE BETWEEN STATE AND FEDERAL
State and federal courts cannot lawfully interfere with each other where each is acting within legal limits. 4. SAME-CUSTODY 011' PROPERTY.
A federal court will neither interfere with property in the lawful custedyof a state court, nor tolerate interference by a state court with property in its custod)·. 6. SAME-PROPERTY NOT LAWFULJ,Y IN CusTODY 011' STATE COURT.
An insurance company built a house partially On its own land and partially upon that of A., without A. 'sconsent, and leased it to B. & C. Thereafter the company was dissolved by a decree ofthe state court baving jurisdiction, and all its property vested in D., the state super. intendent of insurance. B. & O. thenattorned to D. A. and B., C., and D. were citizens of different states. After the attornment to D., A. brought suit against B., C., and D., in the federal court, to recover possession of the property of whicl1 he had been dispoBSessed. Held, that the federal court was not ousted of its jurisdiction by the attornment of B. & C. to D.
Ejectment. Motion to dismiss. Sansum et Jones. for plaintiff. CaN' et Reynolds, for defandants. TREAT, D. J. Thisis an action of ejectment, in which the plaintiff has set out with great particularity his deraignment of title, through proceedings in partition, to which the Life Association of America became a party. The final decree in said partition suit allt:>tted to the plaintiff the premises in dispute. Said decree was entere.d in June, 1877, and duly recorded. In July, 1878, .theLife Association of America destroyed the fence previously erected by plaintiff along the diviSIon line of the lots assigned to him by the decr.ee in partition
436:
FEDEBALREPOBTEB.
and erected a building partly upon plaintiff's property. Said association thereafter leased said building to the Flints and Coans, (parties defendant.) Suit for the dissolution of said association was October 13, 1879, in the proper state court, which ripened into a final decree on November 10,1879, whereby the title to all of the property of said association vested absolutely in Relfe, the state superintendent. Thereupon the said Flints and Coans attorned to said ,Relfe. The plaintiff in this action made the defendants in possession .and said Relfe the defendants to the suit. A motion was subsequently made to dismiss as to said Relfe, which was resisted by him.. The court overruled the motion, on the ground as the landlord might, under the Missouri statutes, make himself a party, and that, as .the plaintiff had chosen to bring him in, it would beidle to dismiss as ·to him, and then have him take leave to appear instanter. Now, said landlord being defendant of record, appears' specially and moves to dismiss the suit the ground that the premises in dispute are in custodia legis state cou:d through his tenants and himself, as a state officer, in whom there has been vested by ope#tion' of.la'wthe title, whatever it may' have been, of said Then\()tion is'sll,pposed to rest on the doctrine stated in Taylor v. Oa.'rryl, 20 How. 584; Freeman v. Howe, 24 How. 450; Buckv. Oolbath, SWall. 334; Thompson v. Scott, 4 Dill. '504; Oonkling v. '4 Biss. 22; Wiswall v. Sampson, 14 How. 52; Beale v. Phipps, 14 How. 368, and other cases cited. The present suit was brought in this court after said Relfe had become vested by decree ofthe.g.tate court with the title of the Life Association, and after the attornment to him by the tenants in possession. The technical question exists as to the mode of proceeding, viz.: Can a motion to dismiss raise the question desired to be presented? If there appears on the face of the record that the court has no jurisdiction, a motion to dismiss would be proper. But other facts have to appear in this case to raise the jurisdictional question,-such as the proceedings in the state <loud, etc.,-which facts are stated at length in the motion and supplemented by the state record, etc. Hence, the queE!'
WALKER V. 'LINT.
437,
tion should' come before the court through a plea in abatement. The parties, however, to avoid technicalities, costs, and delay, assert that the question may be considered as on a proper plea in abatement, This court has had occasion, within the past year, to express its views upon supposed conflicts of jurisdiction between state and United States courts in like cases.· The rule is that when a state court has, through any of its officers, custody of property, a United States court will not interfere with said custody, and, on the other hand, will not permit, interference with its own custody. That rule is essential, under our complex system of government, to due harmony of· administration, and to avoid unseemly conflicts. If rests not on comity alone, but on the true theory of our governmental sj'Ftom, state and federal. There is to be no interfe,rence, one with the other, where each is acting within legal but, on the other hand, neither is to transc.end legal or'collstitutionallimits, or deprive a 'party of his consti. tutional rights. . It is often difficult to ascertain the precise limits to'be obser,vedunder the rules just stated, as it is to reconcile cations had. The cases above cited; and the two caees of Pa.yne v. Hook in the United States s'uptemecourt, seem not to be in 'accord. Whether so or not, the case the court is free from such embarrassment. The rights of all parties had been settled by the partition decree in the state court, despite which one had become a trespasser on the premises of the other. Because the trespasser passed into liquidation under a state law, and his tenants who were co-trespassers attorned to the state liquidator, the real and adjudicated owner, being a citizen of another state, could not be thus deprived of his constitutional right to be heard in this court. The point decided is, not that of interference with the undoubted possession, rightfully, of property by the officer of another court, but that of an attempt to oust this court of jurisdiction by the attornment of trespassers to such trespassing officer. · See LetJi v. Oolwnbia Life Ins. Co. 1 FED. REP. 206.
488
FEDBRAL REPORTER.
The motion to dismisfil is overruled. If a plea of abatement were interposed, embodying the statement of facts contained in· the motion to dismiss, a demurrer thereto would be sustained.
RUTZ and others (Oircuit Court, E. D.
'D.
CITY
OF
ST.
LOUIS.
January 3, 1881.)
The limit of the authority of states bordering on a navigable river is to protect their own shores and harbors without interfering wit,h the opposite shores, or common rights of navigation. 2.
Where such a state authorizes a structure, which, but for such authorization, would be considered a nuisance, its own citizens must accept the legal consequences, though not without the recovery of damages; but it cannot pass a law to govern a state bordering on the opposite shore, or its citizens, or the realty situated therein. 3. PRACTICE--DEWJRRER.
The petition alleged that the plaintiff was the owner of real estate in Illinois, opposite the city of St. Louis, and bordering on the Mississippi river; that said city had caused a dyke to be built on the Missouri shore unlawfully, which dyke had caused plaintiff's land to be washed away. Held, that the defendant could not raise the question of the lawfulness of the dyke under the Missouri statutes, by demurrer to the petition, but should inform the court by answer, on trial, whether the dyke interfered with the navigability of the river, and transcended the power of the state. 4 . .sAME-LoCAL ACTIONS.
,
Held,further, that the old rule as to local actions wu Dot applicable to a suit of this nature.
Demurrer to Petition. Ba.ker « Fletcher, for plaintiff. Leverett Bell, for defendant. TREAT, D. J. This is an action at law for the recovery of damages consequent upon the alleged injuries caused' by de. fendant. The plaintiff was owner of real estate in Illinois, opposite the city of St. Louis. Said city built, it is averred, on its unlawfully, a dyke, whereby 40 acres of
